Court Hearings

By: Louise Smith, barrister - Updated: 20 Jun 2010 | *Discuss

 

Most courts list possession hearings in bulk. Each case is allocated five minutes but some inevitably take longer. Consequently a case might not be heard until much later than the scheduled time. This is not a license to turn up late – borrowers should try to get to court at least 15 minutes early. When the judge is ready to deal with the case it will probably go ahead whether or not the borrower is present. If a borrower is running late they should telephone the court: if there is a good reason, judges will often wait.

Documents to Take to Court

Borrowers should bring any documents which support their case. Depending on what a borrower is going to ask the judge to do, these might include:

• Evidence of income and expenditure - pay slips, invoices, proof of benefits etc, (suspended possession order);
• Letters from a borrower’s solicitor to prove that a sale is in progress, estate agent’s particulars, (time to sell);
• Proof of mortgage offer, evidence of re-mortgage application, (time to re-mortgage).

The Lender’s Representative

It is usual to discuss the case with the lender’s representative before the hearing - it may still be possible to reach an agreement with them.

The Hearing

Possession hearings are relatively informal and are usually heard in “Judge’s Chambers”, which look more like offices than courts. Everyone stays seated while talking to the judge, who is addressed as Sir or Madam. Members of the public are not allowed in: only the parties and / or their legal representatives should be present.

The lender’s representative will give the judge the up-to-date figures on the mortgage account and hand up certain documents. These usually include a copy of the Mortgage Deed and copies of the details held by the Land Registry showing that the property is owned by the borrower and mortgaged to the lender. The lender’s representative will tell the judge if the borrower and the lender have reached an agreement.

Borrowers will have a chance to explain their side of the case to the judge. Some judges are more patient than others but, due to the limited time allocated to each case, borrowers should try to focus on:

• why they got into arrears;
• what they propose to do about the arrears; and,
• evidence which proves that they will be able to do what they propose.

Payments under Suspended Possession Orders

If the judge makes a suspended possession order the first payment should be made on the next due date for the mortgage. Borrowers need to be aware of this and budget accordingly. Some borrowers make a payment just before the hearing but then cannot afford to make the next payment when it is due. Unless the arrears can be cleared, it sometimes makes more sense to put the money towards making monthly payments after the hearing.

Adjournments

There are several reasons why a judge might adjourn a mortgage possession case:

• The lender has not provided the correct documents or there is a dispute about the level of the arrears. The judge might adjourn to a future date for the correct documents or a full statement of account to be provided.
• The borrower has made a payment which either clears the arrears or reduces them to below the level that would entitle the lender to a possession order. The judge will “adjourn generally with liberty to restore” –this means that the lender can ask for another hearing if the arrears build up again.
• Occasionally if the arrears are low, or have already been significantly reduced by regular payments, the judge may say that the case will be adjourned for as long as payments continue. If payments are not maintained the lender can ask for another hearing.
• If it appears that the borrower may have a defence, (rare in mortgage cases,) the judge will adjourn so that both sides can produce more evidence.

The Borrower’s Day in Court

Surprisingly, the majority of borrowers do not go to court for their possession case.

The hearing is a borrower’s chance to convince a judge not to make a possession order. Most judges do not want to make people homeless and will do what they can to prevent the lender from repossessing. However, if the borrower is not there, the judge is likely to rely on what the lender says. Unless an agreement has been reached, a 28-day possession order is almost inevitable.

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